Towns, tree company battle in lawsuits over 2008 ice storm cleanup

BECKET -- Two towns and a tree-removal company have engaged in a legal battle over cleanup costs from the December 2008 ice storm.

Becket and Blandford have filed counterclaims in Superior Court against BRD LLC, the tree-removal company that sued them individually last summer alleging they weren't paid or paid in full for clearing up the tree debris created by the storm.

Last August, BRD LLC of Suffield, Conn., sued Becket, claiming the town had only paid $252,432 of its $875,218 bill for clearing and removing debris like limbs and trees. BRD also sued Blandford for not paying its $875,218 cleanup bill.

In lawsuits of their own, the towns claim that BRD not only didn't perform and document the work to specifications required, but also instructed the towns not to pay the bills because the company hadn't properly documented its work.

One of the worst in recent memory, the 2008 ice storm wrought havoc throughout the Berkshires. It left thousands of people without power for days and created months of cleanup work to remove limbs and trees that were felled by the tens of thousands on public and private property. Towns like Becket and Blandford were hit especially hard.

While the towns filed counterclaims against BRD, it's unclear if they'll be allowed to proceed in court because of a statute of limitations. In their counterclaims, however, the towns allege BRD intentionally waited three years to file suit so the three-year statute of limitations, during which the towns could have countersued, would run out. The towns claim this allowed BRD to "actively and fraudulently" conceal "its wro ng ful conduct."

Both towns hired BRD to perform debris removal in the spring of 2009. The cleanup costs were to be reimbursed by the Federal Emergency Management Agency, but only for work directly related to the storm cleanup and documented to FEMA specifications.

In its suit, BRD LLC claims the company performed the work, but was not paid or paid in full.

But the towns allege BRD worked beyond the parameters of its work order (such as cutting down healthy trees and ones on private property), didn't properly document the work it did, and sold town-owned trees to Moosehead Harvesting Inc., which is owned by the wife of BRD principal Robert Reed and the mother of the company's other principal, Robert Reed Jr., for a profit.

The towns also allege that its trees have either been sold or could be personally used by one or more of BRD's employees.

Interim Becket Town Administrator Joseph Kellogg declined to comment on specifics because of litigation. BRD and Blandford representatives did not return calls for comment.

The towns contend that pricing outlined in their "scope of work" agreement with BRD was not a legal contract. The counterclaim also states, "Before BRD's general manager signed the scope of work, BRD changed the prices that had been included in the bid submitted to the town."

In its suit, BRD contends the agreement is a contract.

The towns further claim that under the scope of work agreement, payment can be withheld if the work isn't properly documented, which they say was the case.

The towns also point to an October 2009 letter from BRD's attorney telling Becket not to pay on the company's invoices because "BRD employees failed to provide proper documentation ... relative to some of the tree work" to the towns.

The lawsuit is currently in the discovery, or evidence-gathering, process.

The towns also subpoenaed records from Moosehead Harvesting Inc., which the company tried to quash. However, Superior Court Judge Daniel Ford ordered Moosehead to turn over those records related to work it had done with BRD during the cleanup.

In its lawsuit, BRD LLC is requesting the contracts be paid, along with a late interest payment.

The towns in the counterclaim are requesting judgment against BRD for up to three times its damage, plus interest, attorneys' fees, cost of suit, and other relief the court may deem appropriate.

Boston-based Kopelman and Paige P.C. is representing both towns has requested the two lawsuits be made into one. The towns are awaiting a judge's decision on that.

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